JUDGMENT
STRASBOURG
5 November 2009
This judgment will become final in the circumstances set out in Article 44 ยง 2 of
the Convention. It may be subject to editorial revision.

SPAS TODOROV v. BULGARIA JUDGMENT

1

In the case of Spas Todorov v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 13 October 2009,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 38299/05) against the
Republic of Bulgaria lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Bulgarian national, Mr Spas Dimitrov Todorov
(“the applicant”), on 13 October 2005.
2. The applicant was represented by Mrs S. Stefanova and Mr K. Bakov,
lawyers practising in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Kotzeva, of the
Ministry of Justice.
3. On 12 December 2005 the Court decided to communicate the
complaints concerning the length of the proceedings and alleged lack of
effective remedies in this respect to the Government. It was also decided to
rule on the admissibility and merits of the application at the same time
(Article 29 § 3).

THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1970 and lives in Belozem.
5. On 12 November 1997 the applicant, who had previous convictions
for rape and other offences, was arrested, charged with rape and sexual
assault and remanded in custody. The charges on which the applicant was
later convicted concerned a gang rape by three persons who entered the

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SPAS TODOROV v. BULGARIA JUDGMENT

home of a woman who lived with her two minor daughters, forced her to
leave the house and raped the girls, aged thirteen and sixteen.
6. The preliminary investigation was completed in July 1998. During
that stage of the proceedings the investigator held more than twenty
interviews with witnesses and the accused, commissioned medical reports
and a psychiatric report, conducted searches and collected other evidence.
7. On 31 July 1998 an indictment was submitted to the Plovdiv District
Court.
8. In the following two years and two months the District Court invited
the parties to ten or twelve hearings, five or six of which were adjourned.
Three adjournments were caused by the fact that one of the jurors was
absent. That caused a delay of approximately six months. One adjournment
was the result of the absence of the lawyer of one of the accused and
another adjournment was occasioned by the absence of the civil plaintiff.
The authorities also encountered difficulties in locating and summoning
some of the witnesses.
9. By judgment of 25 September 2000, the District Court found the
applicant guilty as charged and sentenced him to six years' imprisonment.
The applicant and the other accused appealed.
10. By judgment of 28 March 2001 the Plovdiv Regional Court quashed
the lower court's judgment and remitted the case on the ground that on
26 May and 28 September 1999 the District Court had ruled on the accused
persons' appeals against detention in a composition different from that in
which it had sat in the criminal case against them. That was considered to be
a â&#x20AC;&#x153;significant breach of procedureâ&#x20AC;? that automatically required the quashing
of the District Court's judgment in the criminal case and a fresh trial. In
reaching that conclusion, the Regional Court referred to the practice of the
Supreme Court of Cassation on the matter (see paragraph 30 below).
11. In April 2001 the prosecutor rectified two minor omissions in the
indictment.
12. The new trial started with a hearing on 16 July 2001 which was,
however, adjourned, because the victims had not been summoned.
13. The hearing listed for 25 January 2002 was adjourned as two of the
accused did not appear. One of them had fallen ill and the other had left the
country.
14. The hearing listed for 20 February 2002 was adjourned as one of the
jurors did not appear.
15. The hearing listed for 9 May 2002 could not proceed because the
applicant's lawyer was attending to other business and the applicant had not
had the time to seek assistance from other counsel.
16. The hearing listed for 19 June 2002 was adjourned because the
applicant's lawyer did not appear and the applicant had not retained counsel.
The court appointed counsel for the applicant itself and adjourned the
hearing.

SPAS TODOROV v. BULGARIA JUDGMENT

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17. The court held hearings on 16 and 17 September 2002, 21 and
22 November 2002 and 21 and 24 March 2003. It heard witnesses and the
parties' pleadings and admitted other evidence.
18. Throughout the proceedings delays occurred as a result of the fact
that the victims and witnesses could not be found at their registered
addresses.
19. By judgment of 24 March 2003 the applicant and the other accused
were found guilty as charged. The applicant was sentenced to six and a half
years' imprisonment.
20. The applicant appealed to the Regional Court.
21. The hearing before the Regional Court listed for 2 October 2003 was
adjourned as the civil plaintiff, the victim, was absent.
22. The hearing listed for 2 December 2003 could not proceed as the
applicant had fallen ill.
23. On 13 January 2004 the Regional Court held a hearing at which it
heard the parties' pleadings.
24. By judgment of 28 May 2004 the Regional Court upheld the District
Court's judgment of 24 March 2003.
25. The applicant filed a cassation appeal.
26. The Supreme Court of Cassation heard the case on 25 January 2005.
By judgment of 9 May 2005 the Supreme Court of Cassation upheld the
lower courts' judgments.
2. The applicant's deprivation of liberty
27. The applicant was arrested and remanded in custody on
12 November 1997. On 25 September 2000 he was convicted and sentenced
to a term of imprisonment. His conviction and sentence were quashed on
28 March 2001 and the trial recommenced. The applicant remained in pretrial custody. In the fresh trial, on 24 March 2003 the applicant was
convicted and sentenced to a term of imprisonment.
28. The applicant remained in custody until 2 December 2003, when he
was placed under house arrest. He remained under house arrest until the end
of the criminal proceedings on 9 May 2005.
B. Relevant domestic law and practice
29. Article 257 ยง 1 of the Code of Criminal Procedure 1974, as in force
at the relevant time, provided that the composition of the trial court must
remain unchanged throughout the proceedings. In accordance with the
second paragraph of Article 257, if one of the judges or jurors was
prevented from sitting, the trial had to recommence.
30. It follows from Article 304 ยง 1 of the same Code that at the trial
stage of the criminal proceedings the detainee's requests for release are
examined by the trial court.

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SPAS TODOROV v. BULGARIA JUDGMENT

31. In a 1998 decision (реш. № 45, 2.02.1998, н.д.. № 732/1997, II
н.о.), the Supreme Court of Cassation stated as follows:
“The modification of the measure of judicial control [(pre-trial detention, house
arrest, surety, etc)] in the course of the trial is a procedural act and has to be
undertaken by the same composition of the court which had started the examination of
the criminal case. The decision to modify the measure must be taken by the court on
the basis of a careful assessment of the behaviour of the accused person during the
trial ...
Since the jurors [who decided to modify the measure of control in the case at hand]
did not participate in the examination of the criminal case, [and were not present]
when the accused person and most of the witnesses were heard, they could not form
an objective opinion as to the necessity to modify the measure... [It follows that there
has been a substantial breach of procedure in that Article 257 § 1 CCP has been
violated ...]”

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
32. The applicant complained that the length of the proceedings had
been incompatible with the “reasonable time” requirement laid down in
Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a
... hearing within a reasonable time by [a] ... tribunal...”

33. The Government contested that argument.
34. The period to be taken into consideration began on 12 November
1997 and ended on 9 May 2005. It thus lasted seven years and almost six
months for the preliminary investigation and three levels of jurisdiction.
A. Admissibility
35. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
36. The Court reiterates that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of the case

SPAS TODOROV v. BULGARIA JUDGMENT

5

and with reference, in particular, to the complexity of the case and the
conduct of the applicant and the relevant authorities (see, among many other
authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II)
37. The Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present case (see,
for example, Valentin Ivanov v. Bulgaria, no. 76942/01, 26 March 2009 and
Nalbantova v. Bulgaria, no. 38106/02, 27 September 2007).
38. Having examined all the material submitted to it, the Court considers
that the Government have not put forward any fact or argument capable of
persuading it that the period of seven years and six months was reasonable
in the circumstances of the present case.
39. The Court notes, in particular, that in March 2001 the Plovdiv
Regional Court undid the fruit of more than two years of trial proceedings
(see paragraphs 7-9 above) and ordered a fresh trial. The Court must
determine whether the ensuing delay of more than two years was imputable
to the authorities.
40. It observes that the District Court's judgment was quashed on the
sole ground that it had ruled on the accused persons' appeals against
detention in a composition different from that in which it had sat in the
criminal case against them. According to the Supreme Court of Cassation's
practice, this was considered to be a “significant breach of procedure” that
automatically required the quashing of the District Court's judgment in the
criminal case and a fresh trial (see paragraphs 10 and 31 above). This
practice was apparently based on the provisions of the Code of Criminal
Procedure, which require that the same trial court which examines the
merits of the criminal charges must also deal with the requests for release
submitted by the accused (see paragraphs 30 and 31 above).
41. In the present case, the Regional Court did not notice any change of
composition of the District Court at hearings dealing with the criminal
charges against the accused. In such circumstances, the fact that the District
Court's composition changed unlawfully when it dealt with the appeals
against pre-trial detention – a matter unrelated to the admissibility or merits
of the criminal charges – could have possibly justified the quashing of the
District Court's decisions on pre-trial detention, but not of its judgment on
the merits of the criminal charges. Indeed, according to the Bulgarian
Supreme Court of Cassation, the reason underlying the rule that the trial
court should deal with appeals against detention in the same composition in
which it examines the merits of the criminal charge is that changes in the
composition would adversely affect the judges' capacity to appraise the need
to detain or release the accused (see paragraph 31 above). It has not been
stated that the judges' capacity to appraise the merits of the criminal charges
would be affected if other judges considered appeals against detention.

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SPAS TODOROV v. BULGARIA JUDGMENT

42. In spite of these obvious distinctions, the relevant law and
established practice, and the Regional Court in the applicant's case, applied
a formalistic approach which ascribed automatic consequences to certain
types of procedural omissions, without regard to their effect on the
proceedings and without consideration of less onerous and less timeconsuming possibilities to remedy the omissions.
43. It is incumbent on the respondent State to choose and devise the
procedural means most appropriate to secure the enjoyment of all
Convention rights, including the right under Article 6 § 1 to a trial within a
reasonable time. The Court's task is limited to examining whether the delay
of more than two years caused by the fact that the applicant's trial
recommenced from the very beginning was imputable to the authorities. In
the light of the considerations set out above, the Court finds that that was so,
this delay having been unnecessary.
44. Indeed, the Court has already noted in previous cases against
Bulgaria that inordinate delays in criminal proceedings were brought about
by the unnecessary remittal of cases on excessively formalistic grounds (see
Kitov v. Bulgaria, no. 37104/97, § 73, 3 April 2003, Vasilev v. Bulgaria,
no. 59913/00, § 93, 2 February 2006, Kalpachka v. Bulgaria, no. 49163/99,
§ 73, 2 November 2006 and Karov v. Bulgaria, no. 45964/99, §§ 62 and 63,
16 November 2006). The present case is another example of this unjustified
approach of the Bulgarian courts.
45. The Court further notes that other delays, totalling at least ten
months, were also imputable to the authorities (see paragraphs 8 (second
and third sentence), 12 and 14 above).
46. Having regard to the above and taking into consideration all other
relevant facts, including the overall length of the proceedings and the fact
that only very short delays may be considered as imputable to the applicant
(see paragraphs 15 and 16 above), the Court considers that in the instant
case the length of the criminal proceedings was excessive and failed to meet
the “reasonable time” requirement.
47. There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
48. The Court reiterates that Article 13 of the Convention guarantees the
availability at national level of a remedy to deal with the substance of an
“arguable complaint” under the Convention and to grant appropriate relief
(see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI). In the
present case, having regard to its conclusion with regard to the excessive
length of the proceedings, the Court considers that the applicant had an
arguable claim of a violation of Article 6 § 1.
49. Remedies available to a litigant at domestic level for raising a
complaint about the length of proceedings are “effective”, within the

SPAS TODOROV v. BULGARIA JUDGMENT

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meaning of Article 13, if they prevent the alleged violation or its
continuation, or provide adequate redress for any violation that has already
occurred (see Kudła, cited above, § 158).
50. The Court notes that in similar cases against Bulgaria it has found
that at the relevant time there was no formal remedy under Bulgarian law
that could have prevented the alleged violation or its continuation, or
provided adequate redress for any violation that had already occurred (see
Valentin Ivanov v. Bulgaria, cited above, §§ 34-37, Osmanov and Yuseinov
v. Bulgaria, nos. 54178/00 and 59901/00, §§ 31-42, 23 September 2004;
Sidjimov v. Bulgaria, no. 55057/00, §§ 37-43, 27 January 2005; and
Nalbantova, cited above, §§ 32-36). The Court sees no reason to reach a
different conclusion in the present case.
51. Accordingly, there has been a violation of Article 13, in conjunction
with Article 6 § 1 of the Convention, on account of the lack of an effective
remedy for the excessive length of the criminal proceedings.
III. REMAINING COMPLAINTS
52. The applicant complained under Article 5 §§ 3 and 5 of the
Convention that his pre-trial detention and house arrest had been
excessively lengthy and that he did not have an enforceable right to
compensation in this respect.
53. The Court reiterates that the period to be considered under Article 5
§ 3 of the Convention ends on the day on which the charges brought against
the applicant were determined by a first-instance court (see, for a detailed
explanation of the Court's case-law on the issue, Solmaz v. Turkey,
no. 27561/02, §§ 23-37, ECHR 2007-... (extracts)).
54. In the present case, the application was introduced with the Court in
October 2005, more than six months after 24 March 2003, the date of the
applicant's conviction in his second trial, which is the date marking the end
of his pre-trial deprivation of liberty falling under Article 5 §§ 1(c ) and 3 of
the Convention. The complaint under Article 5 § 3 must be rejected,
therefore, for failure to observe the six-month time-limit under Article 35
§ 1 of the Convention.
55. Furthermore, there not having been a finding by a domestic court or
by this Court that the applicant's deprivation of liberty was contrary to one
or more of the requirements of Article 5 of the Convention, the Court finds
that Article 5 § 5 was not applicable. This part of the application is thus
incompatible ratione materiae with the provisions of the Convention and
must be rejected under its Article 35 §§ 3 and 4.
56. The applicant's complaints under Article 5 §§ 3 and 5 of the
Convention must therefore be declared inadmissible.

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SPAS TODOROV v. BULGARIA JUDGMENT

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
57. Article 41 of the Convention provides:
â&#x20AC;&#x153;If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.â&#x20AC;?

A. Damage
58. The applicant claimed 12,000 euros (EUR) in respect of nonpecuniary damage allegedly resulting from the violations of his rights under
Articles 6 and 13 of the Convention.
59. The Government did not express an opinion on the matter.
60. The Court considers that the applicant must have sustained nonpecuniary damage. Ruling on an equitable basis, it awards award him
EUR 1,200.
B. Costs and expenses
61. The applicant also claimed EUR 3,010 in respect of legal fees for
43 hours of legal work on the case before the Court at the hourly rate of
EUR 70. He also claimed EUR 60 in respect of postage and stationary
expenses. In support of these claims the applicant submitted a time sheet
and a legal fees agreement between him and his lawyers. The applicant
requested that the amounts awarded in respect of costs and expenses should
be paid directly into the bank account of his legal representatives.
62. The Government did not express an opinion on the matter.
63. According to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown that
these have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the information in its
possession and the above criteria, the Court, taking into consideration in
particular the fact that part of the complaints were rejected and the relatively
low level of complexity of this case, the Court considers it reasonable to
award the sum of EUR 500 covering costs under all heads.
C. Default interest
64. The Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.

SPAS TODOROV v. BULGARIA JUDGMENT

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FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the excessive length of the
proceedings and lack of effective remedies in this respect admissible and
the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 13 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one thousand and two
hundred euros), plus any tax that may be chargeable, in respect of nonpecuniary damage and EUR 500 (five hundred euros), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses,
both amounts to be converted into Bulgarian levs at the rate applicable at
the date of settlement;
(b) that the sum awarded in respect of costs and expenses, namely
EUR 500 (five hundred euros) be paid directly into the bank account of
the applicant's representatives;
(c) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
5. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 5 November 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.

Spas Todorov

STRASBOURG JUDGMENT This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. (Application no. 38299/05) 5 November 2009